Court OKs video sales

Justices protect speech, reject ban of minors acquiring violent games

By David G. Savage Tribune Washington Bureau

Published 12:31 am, Tuesday, June 28, 2011

Photo: Paul Sakuma

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In this June 24, 2011 photo, Grand Theft Auto video game on PlayStation 3 is displayed at Best Buy in Mountain View, Calif. The Supreme Court says California cannot ban the rental or sale of violent video games to children. The high court agreed Monday with a federal court's decision to throw out California's ban on the sale or rental of violent video games to minors. (AP Photo/Pakuma) less

In this June 24, 2011 photo, Grand Theft Auto video game on PlayStation 3 is displayed at Best Buy in Mountain View, Calif. The Supreme Court says California cannot ban the rental or sale of violent video games ... more

Photo: Paul Sakuma

Court OKs video sales

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WASHINGTON -- The Supreme Court ended its term with a vigorous defense of free speech, striking down a California law that banned sales of violent video games to minors and effectively shielding the entertainment industry from any government effort to limit violent content.

"Like books, plays and movies, video games communicate ideas," said Justice Antonin Scalia in his majority opinion Monday. And he said there "is no tradition in this country of specially restricting children's access to depictions of violence. ... Grimm's Fairy Tales, for example, are grim indeed."

The decision, coming on the term's last day, highlights a consistent theme of the high court under Chief Justice John G. Roberts Jr.: Freedom of speech is almost always a winner, even if the context is unusual.

The court will have another opportunity next term to test how much further the Constitution's protection of speech reaches. The justices said they would hear a case about the long-standing federal regulation of prime-time television broadcasts. The case concerns whether the Federal Communications Commission can punish broadcasters for showing nude scenes or airing four-letter words.

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Over the last few years, the court's First Amendment cases have leaned heavily toward protecting speech. Last year, the court upset animal rights advocates when it struck down a law that forbid the sale of videos showing animals being tortured. Last week, the court struck down a Vermont law that barred the sale of private drug-prescription records. The court said this data is "speech" and can be traded in the "marketplace of ideas."

Monday also saw another campaign funding law fall on free speech grounds. A 5-4 decision rejected part of an Arizona law and said states may not give extra money to candidates who abide by spending limits because doing so impedes the speech of candidates.

While the outcome in First Amendment cases has been consistent, voting has not followed the usual conservative-liberal pattern.

In Monday's decision, in the case of Brown vs. Entertainment Merchants Association, a 7-2 majority voted against California's law, but the justices were divided 5 to 4 over whether violence in the media ever can be regulated to protect children.

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His opinion voiced strong support for free speech even when children are the audience. But his support came with an exception established in cases four decades ago: The law can protect children from sex and pornography in the media, he said, but it cannot protect them from violence. He cited court precedents that exempted from the First Amendment "obscenity" and pornography directed at children.

Justice Clarence Thomas took the opposite view. Writing in dissent, he said California's law should be upheld because juveniles have no right to free speech. In the past, Thomas voted to strike down anti-pornography laws. Justice Stephen G. Breyer also said he would have upheld California's law.

Justice Samuel A. Alito, joined by Chief Justice Roberts, agreed California's law should be struck down, but only because it did not clearly spell out which games would violate the law.

The video game law passed the Legislature in 2005. It would have imposed a $1,000 fine on those who sold or rented a video game to someone under 18 that featured the "killing, maiming, dismembering or sexual assaulting" of a human image and "appeals to deviant or morbid interest." Before the law took effect, the gaming industry sued. Judges put the law on hold.

Alito praised the state's lawmakers for a "well-intentioned" effort to deal with "a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors." He devoted most of his opinion to describing the "astounding" level of violence in these games.

Officials of the video gaming industry said they were pleased and relieved by the decision. A ruling upholding California's law would almost certainly have triggered laws in other states as well as broader measures to restrict violence in the media.

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Michael Gallagher, president and CEO of the Entertainment Software Association, said the decision "is an overwhelming endorsement of the First Amendment, the right to free expression and the freedom of speech. It's also a great victory for parents and right of parents," he said. "They are to be in control, not the state, for the content that is used, consumed and enjoyed in the home."

Advocates for parental control of the media were disappointed. "This ruling replaces the authority of parents with the economic interests of the video game industry," said Tim Winter, president of the Parents Television Council in Los Angeles. "With no fear of any consequence for violating the video game industry's own age restriction guidelines, retailers can now openly, brazenly sell games with unspeakable violence and adult content even to the youngest of children."